PROFESSIONAL FINANCIAL SERVICES PETITIONER
v.
SERENA GORDON AND HON. R. ROLAND CASE, ADMINISTRATIVE LAW JUDGE RESPONDENTS
No. 201392143
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
March 12, 2021
APPEAL
FROM HON. R. ROLAND CASE, ADMINISTRATIVE LAW JUDGE.
COUNSEL FOR PETITIONER: LMS HON STEVEN D GOODRUM HON IAN M
GODFREY
COUNSEL FOR RESPONDENT: LMS HON PAULA RICHARDSON BARBER
BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.
OPINION
AFFIRMING
ALVEY,
Chairman.
Professional
Financial Services (“PFS”) appeals from the
November 9, 2020 Opinion on Remand, and the December 20, 2020
Order denying its Petition for Reconsideration rendered by
Hon. R. Roland Case, Administrative Law Judge
(“ALJ”). The ALJ found Serena Gordon
(“Gordon”) was engaged in an activity benefitting
her employer when she tripped and fell on a crumbling
sidewalk on February 25, 2013. The ALJ therefore determined
her injuries are work-related, and he reiterated his previous
award of temporary total disability (“TTD”)
benefits, permanent partial disability (“PPD”)
benefits, and medical benefits.
On
appeal, PFS argues substantial evidence does not support the
ALJ’s determination regarding an exception to the
“Coming and Going” rule. PFS also argues the ALJ
failed to provide sufficient findings of fact or analysis of
law. We find the ALJ’s decision on remand for
additional analysis regarding the compensability of
Gordon’s claim due to the “benefit to the
employer” exception of the “Coming and
Going” rule is minimally sufficient; therefore, we
affirm.
Gordon
filed a Form 101 on October 2, 2015 alleging injuries to her
left knee, ankle, and foot on February 25, 2013 when she
twisted her left leg as she stepped from a curb while going
to her car. At the time she filed her claim, Gordon was a
resident of Lexington, Kentucky. Her work history reflects
she has worked in automobile sales, financing, and
management. At the time of the accident, she was the branch
manager for PFS, an automobile financing company. We will not
review the medical evidence since it has no bearing on the
issues raised on appeal.
In his
decisions rendered in 2016 and 2020, the ALJ determined PFS
did not own, operate, control or maintain the parking lot
where the accident occurred. The ALJ also determined Gordon
was not required to park in a specific spot or area in the
parking lot. The ALJ therefore determined the parking lot was
not part of the employer’s operating premises. We will
not address that determination since it was not appealed.
In the
October 5, 2016 Opinion, Award, and Order, the ALJ found
Gordon sustained compensable work-related injuries on
February 25, 2013. He found the activity of retrieving her
tablet provided some benefit to the employer, and therefore
found the exception to the “Coming and Going”
rule applicable. This Board affirmed the ALJ’s decision
in an Opinion dated March 31, 2017. The Court of Appeals
affirmed this Board in a decision rendered June 8, 2018. The
Kentucky Supreme Court reversed the Court of Appeals in
Professional Financial Services v. Serena Gordon,
2018-SC-000363-WC (June 13, 2019) (Designated Not To Be
Published). That decision specifically directed the ALJ to
make additional determinations as follows:
The ALJ did not make any findings as to exactly when
Gordon’s activities became for the “benefit of
the employer” and when they ceased. And the ALJ’s
reliance on one case for the general rule that workers’
compensation coverage can cover injuries sustained outside an
employer’s operating premises is insufficient to
resolve the issue at bar, as demonstrated by the analysis in
the Board’s majority opinion. While we do not opine
whether Gordon’s injury is compensable, we do remand
for the ALJ to perform an appropriate analysis and to make a
determination supported by the record.
Gordon
testified by deposition on December 21, 2015, and at the
hearing held June 17, 2016. Gordon began working for PFS, an
automobile financing company, in March 2007. As branch
manager, she spent approximately seventy percent of her time
in the office. She spent the remainder of her time attending
automobile auctions, visiting dealerships, and collecting
accounts.
On
February 25, 2013, Gordon was working late to catch up on
collections because it was nearly the end of the month. Upon
reaching her car, Gordon realized she had left behind the
tablet PFS provided for her to use while out of the office.
She returned to her office, got the tablet and returned to
her car. When she stepped off the curb prior to entering her
car, she rolled her left ankle causing her to fall.
Nat
Reider (“Reider”), the regional manager for PFS,
testified by deposition on February 3, 2016. Reider testified
branch managers, like Gordon, may take tablets home with them
to conduct business. Branch managers are on call to
dealerships in order to process credit applications. It is
not unusual to take tablets home for this purpose. Reider
acknowledged approximately thirty percent of a branch
manager’s time is spent in the field, which includes
visiting dealerships and collecting payments from
individuals.
Jason
Scott Claypool (“Claypool”), current branch
manager for PFS in Lexington, testified by deposition on
April 12, 2016. He was Gordon’s assistant manager when
she was the branch manager. He testified that as branch
manager he has the option to take a tablet home with him, as
did Gordon when she was branch manager. He stated he tries to
complete all of his work before he goes home.
In the
decision rendered November 9, 2020, the ALJ determined as
verbatim follows:
In the case at hand, the Plaintiff had returned to her office
to retrieve a tablet, which was issued to her by the
Defendant-employer for the sole purpose of the Plaintiff
working from home. The Plaintiff testified the tablet could
not be used for any other purpose rather than work. After
retrieving the tablet form her office the Plaintiff slipped
and fell on her way back to her vehicle.
The
claimant, Serena Gordon, in her discovery deposition at pages
22 and 23 testified to-wit:
Q. Well, just kind of walk me
...
